Medical malpractice “reform” is an issue in the health insurance debate. See our prior post, Part I, on the myth that “medical malpractice reform” is a change for the better for everyone. In fact, it favors the medical industry, and it hurts people who may be injured by malpractice in the future.
This post will discuss another two myths, i.e., frivolous lawsuits and junk science are an undue burden on the public.
Myth II–Frivolous Lawsuits Are Draining the System
It has often been repeated that frivolous medical malpractice lawsuits are costing billions.
The frivolous medical malpractice lawsuit is a myth, at least in New York.
In a prior round of medical malpractice “reforms” in New York in the 1980’s there were changes in the law which made the frivolous lawsuit extinct.
For example, in order to file a lawsuit the case must have merit. Th plaintiff’s attorney must have an independent expert opine that there was medical malpractice. The complaint must contain a certificate from plaintiff’s attorney that he has such an opinion. In order to get to the starting gate of the lawsuit the lawyer will have to spend $5,000 to $10,000 or more for the expert’s review of the records. More on this later.
Second, the legal fee on medical malpractice is lower than other cases. Rather than the the usual 1/3 contingency fee, there is a sliding scale:
- 30% on the first $250,000;
- 25% on the next $250,000;
- 20% on the next $500,000
- 15% on the next $250,000; and
- 10% on all amounts over $1,000,000
Therefore, let us assume that an automobile case involving very serious injuries brings a recovery of $1,500,000. Roughly, the attorney’s fee would be $500,000. However, let us assume that a medical malpractice case settles for the same amount. The fee would be $325,000. That is a difference of $175,000!
Therefore, medical malpractice cases pay less. The fee is not only smaller, but handling a case means that more labor will go into a $1,500,000 medical malpractice case than an $1,500,000 auto case. The lawyer must familiarize himself with the medicine. Many lawyers have to read the same textbooks and articles used by the physicians. The full trial of a medical malpractice case can take many weeks and as much as a month. The medical malpractice defense attorneys vigorously defend cases. Often, defendants will only settle at trial, and sometimes, the only option is to go to full verdict.
Beyond the greater labor and expertise involved, a medical malpractice case is very expensive to prosecute. Typically, it can cost $5,000 to $10,000 to get the records and have the case evaluated by an expert before filing the lawsuit. It is not unusual for the lawyer to spend that money and have to turn-down the case if his expert does not find negligence. If a case is filed, it is not unusual for the expert fees, exhibit fees, and other costs to run in many thousands of dollars, such as $50,000 to $100,000 or even higher! Medical malpractice experts are very expensive, and they charge anywhere from $5,000 to $15,000 to appear in court (along with travel and hotel expenses).
In view of the lower fee, high costs, and great labor and expertise, lawyers can only pursue medical malpractice cases if the damages are above a certain threshold. Some lawyers have a threshold of $250,000. Some have much a higher threshold. That means that only cases with permanent and very serious injuries will get to court.
Furthermore, jurors do not like frivolous medical malpractice case. They tend to favor doctors. Medical malpractice cases have only about a 33% rate of success in the courts. That means about 2 out 3 cases get dismissed. Only strong cases can go to a jury.
In view of all of these factors, an attorney cannot take a frivolous case with the hope of “shaking down” defendant for a quick settlement. Quick settlements do not exist.
I can attest from my own experience that I pass on any medical case which is not strong and is not serious and permanent. Each case is a battle. I have heard the same from my colleagues. There is no easy and quick money from handling medical negligence cases.
The frivolous case does not exist. It is a myth created by the medical and insurance industries.
Myth III–Junk Science Lawsuits Are Burdening the System
The voices for “reform” also call out for abolishing “junk science” lawsuits.
“Junk science” means cases based on very questionable and untested scientific theories. The term “junk science” has been used to criticize drug and medical device (e.g., silicon breast implants) cases where the scientific evidence has been questioned or disproven.
The term “junk science” is inapplicable to medical malpractice. Trials are based on differing expert opinions and facts as to whether the doctor or hospital deviated from the acceptable standard of medical care in the community. You do not get experts going out on a limb offering strange and untested claims. Usually, the experts have a differing opinion on treatment which might fall into the “gray area” of either appropriate or negligent conduct. In other words, the alleged negligence involves routine and factual matters, such as failure to diagnose and failure to treat. There are no “junk science” theories offered in these cases.
An expert’s opinion must be based on facts and learning accepted in the scientific community. The judge will not let the jury hear opinions from a “junk scientist.”
Therefore, “junk science” is not an issue in the debate. The tort reformers use of the term as a buzzword to stir-up support.
Mark E. Seitelman, 9/10/09, www.seitelman.com.